INTRODUCTION

In todays scenario the problem of witnesses turning hostile is quite evident. The
crucial part played by the witnesses in bringing offenders to justice is central to
any modern criminal justice system, since the successful conclusion of each stage
in criminal proceedings from the initial reporting of the crime to the trial itself
usually depends upon the cooperation of witnesses. Their role at the trial is
particularly important in adversarial system where the prosecution must prove its
case by leading evidence, often in the form of oral examination of witnesses,
which can then be challenged by the defence at a public hearing.1 By deposing in a
case, they assist the court in discovering the truth. But the witnesses turning
hostile is a common thing happening in the criminal justice system. The whole
case of the prosecution can fall only on a false statement of the witness. The result
is that more and more citizens are losing faith in the effectiveness of the system in
providing justice to the victims. As long as the witnesses continue to go hostile
and do not make truthful depositions in court, justice will always suffer and
peoples faith in efficacy and credibility of judicial process will continue to be
eroded and shattered.2

HOSTILE WITNESS: MEANING AND NATURE

Generally a witness is labeled as hostile, when he furnishes a certain statement on
his knowledge about commission of a crime before the police but refutes it
when called as witness before the court during the trial.
The term hostile witness does not find any explicit or implicit mention in any
Indian laws, be it Indian Evidence Act or the Code of Criminal Procedure or any
other law. Historically, the term Hostile Witness seems to have its origin in
Common Law. The term hostile witness was first coined in the common law to
provide adequate safeguard against the contrivance of an artful witness who
willfully by hostile evidence ruin the cause of the party calling such a witness.
Such actions hamper not only the interest of the litigating parties but also the quest
of the courts to meet the ends of justice. To initiate the safeguard, it was
1 Mackarel Mark, Raitt Fiona and Moody Susan, Briefing Paper on Legal Issues and Witness Protection in
Criminal Cases Scottish Executive ,Central Research Unit, 2001
2 Mukherjee Subhrarag and Arya Vatsal, Independent Witnesses: a Legal Crisis in India, 2004, Cri. L. J. 186 (S.C.)
imperative to declare such a witness hostile. For this purpose, common law,
laid down certain peculiarities of a hostile witness, such as, not desirous of
telling the truth at the instance of the party calling him or the existence of a
hostile animus to the party calling such a witness.3 The Wikipedia
Encyclopedia defines hostile witness as a witness in a trial who testifies for
the opposing party or a witness who offers adverse testimony to the calling
party during direct examination. A witness called by the opposing party is
presumed hostile. A witness called by the direct examiner can be declared hostile
by a judge, at the request of the examiner, when the witness' testimony is
openly antagonistic or clearly prejudiced to the opposing party.4 The Law.Com
Dictionary defines hostile witness technically an "adverse witness" in a trial who
is found by the judge to be hostile (adverse) to the position of the party whose
attorney is questioning the witness, even though the attorney called the witness
to testify on behalf of his/her client. When the attorney calling the witness finds
that the answers are contrary to the legal position of his/her client or the
witness becomes openly antagonistic, the attorney may request the judge to
declare the witness to be "hostile" or "adverse." If the judge declares the witness
to be hostile (i.e. adverse), the attorney may ask "leading" questions which
suggest answers or are challenging to the testimony just as on cross examination
of a witness who has testified for the opposition.5
Atri Ajit6 defines hostile witness as 'an adverse witness in a trial who is found
by the Judge to be hostile (adverse) to the position of the party whose
attorney is questioning" the witness, even though the attorney called the witness to
testify on behalf of his/her client. When the attorney calling the witness finds that
the answers are contrary to the legal position of his/her client or the witness
becomes openly antagonistic, the attorney may request the Judge to declare the
witness to be 'hostile' or 'adverse'. If the Judge declares the witness to be hostile
the attorney may ask leading questions which suggest answers or are challenging
to the testimony just as on cross-examination of a witness who has testified for the

3 Bose Suprio, Hostile Witness: A Critical Analysis of Key Aspects Hitherto Ignored in Indian Law
www.Legalserviceindia.com/article/host.htm.
4 en.wikipedia.org/wiki/Hostile_witness
5 http://dictionary.law.com
6 Atri Ajit, Hostile Witness: Not sufficient to earn acquittal, 2008 Cri.L.J (Jour.) 191
opposition. Hostile witness is a witness who testifies for the opposing party or a
witness who offers adverse testimony to the calling party during direct
examination.
Thus, a hostile witness, is also called as adverse witness, who weakens the case
of the side he or she is supposed to be supporting i.e. instead of supporting the
prosecution who has presented him as a witness in the court of law, the witness
either with his evidence or statement became antagonistic to the attorney and thus
"ruin the case" of the party calling such witness. In such a case, moreover, it is the
attorney who asks the judge to declare the witness a hostile witness. Thus, it is the
court and no other than the court that has authority to declare a witness a hostile
witness. It has to be remembered here that the court cannot by itself declare a
witness a hostile witness but it can do so only on the request made by the
prosecution attorney. If a witness has been declared a hostile witness, by the court
of law, the attorney then has greater freedom in questioning the hostile witness. In
other words, if a witness has been declared as hostile witness the prosecution may
question the witness as if in cross-examination i.e. he or she may ask leading-
questions to the witness declared hostile and this is the basic difference between
the status of a witness declared hostile and the witness who has not been declared
hostile or who is a common or favorable witness.
The word hostile witness is not defined in the Indian Evidence Act, 1872.
The draftsmen of the Indian Evidence Act, 1872 were not unanimous with
regard to the meaning of the words adverse, unwilling, or hostile, and
therefore, in view of the conflict, refrained from using any of those words in the
Act. The matter is left entirely to the discretion of the court. A witness is
considered adverse when in the opinion of the judge; he bears a hostile animus to
the party calling him and not merely when his testimony contradicts his proof.7
In Sat Pal V. Delhi Administration8 the Honble Supreme Court tried to define
hostile witnesses and laid that to steer clear controversy over the meaning of
hostile witness, adverse witnesses, unfavorable witness which had given rise to
considerable difficulty and conflict of opinions, the authors of the Indian Evidence
Act, 1872 seem to have advisedly avoided the use of any of those terms so that in

7 Supra note 6
8 1976 Cri.L.J. 295: A.I.R. 1976 S.C. 294
India the grant of permission to cross-examine his own witness by party is not
conditional on the witness being declared adverse or hostile. The Supreme Court
in Gura Singh V. State of Rajasthan,9 defined hostile witness as one who is not
desirous of telling the truth at the instance of one party calling him.
In the Indian context, the principles dealing with the treatment of hostile
witnesses are encompassed in Section 154 of the Indian Evidence Act, 1872.10 A
hostile witness is one who from the manner in which he gives evidence shows that
he is not desirous of telling the truth to the court. Within which is included the
fact that he is willing to go back upon previous statements made by him.11 A
witness is not necessarily hostile if he is speaking the truth and his testimony goes
against the interest of the party calling him. A witnesss primary allegiance is to
the truth and not to the party calling him. Hence, unfavourable testimony does
not declare a witness hostile. Hostility is when a statement is made in favour of
the defence due to enmity with the prosecution.12 The inference of the hostility is
to be drawn from the answer given by the witness and to some extent from his
demeanour. So, a witness can be considered as hostile when he is antagonistic in
his attitude towards the party calling him or when he conceals his true
sentiments and does not come out with truth and deliberately makes statements
that are contrary to what he stated earlier or is expected to prove. When a
prosecution witness turns hostile by stating something that is destructive of the
prosecution case, the prosecution is entitled to request the Court that such witness
be treated as hostile.13

CONCEPT OF HOSTILE WITNESS UNDER INDIAN LAW

Though there are not enough provisions under domestic law dealing directly with
the issue but there are certain provisions under the Indian Evidence Act, 1872 and
the CRPC, 1973 that are helpful in explaining the concept to some extent.

9 2001 Cri.L.J. 487: A.I.R 2001 S.C. 330

10 Gopinath Pallavi, Hostile Witness: A Critical Study of the Concept under Section 154 of the Indian Evidence
Act, 2002 Cri.L.J 158 (J)
11 Panchanan Gogoi V. Emperor, A.I.R. 1930 Cal. 276 (278)
12 R.K.Dey V. State of Orissa, A.I.R. 1977 S.C. 170
13 G.S.Bakshi V. State, A.I.R. 1979 S.C. 569
CODE of CRIMINAL PROCEDURE
Section 160 of the CRPC, 197314 empowers the Police Officer making an
investigation to require the compulsory attendance before himself of any person
who appears to be acquainted with the facts and circumstances of the case
under investigation. This provision is to be read in conjunction with Section
161 as per which the Police Officer making the investigation can examine
orally any person supposed to be acquainted with the facts and circumstances of
the case. Section 161(3) also permits the Police Officer to reduce into writing any
statement made to him in the course of an examination under this section.
However, once this is done, Section 162 of the Code comes into play. Section
162(1) consists of two main parts. The first part clearly mandates that any
statement made to the Police Officer and reduced into writing by him, would
not be signed by the maker of such statement. The second part of this
provision creates a bar on the admissibility of statements made by any person to a
police officer in the course of an investigation.

The Supreme Court in Tahsildar Singh V. State of U.P.15 examined in

detailed the purpose and object of this provision. According to the Apex Court,
the legislative intent behind this provision was to protect the accused person
from police officers who would be in a position to influence the makers of such
statements, and from third persons who would be inclined to make false
statements before the police. This is a highly laudable objective and is truly
reflective of the attempt to ensure fairness in the process of criminal investigation.
At the same time, it was imperative that there be some mechanism for recording
confessions and other statements in a fair and foolproof manner, especially in
situations where the police thought the witnesses were unlikely to stick to the
statements made by them under Section 161.16 It was precisely this objective that
resulted in vesting of authority in the Judicial Magistrate to record statements by
14 Hereinafter referred to as the Code.
15 A.I.R. 1959 S.C. 1012
16 Ram Charan v. State of U.P., A.I.R. 1968 S.C. 1270
witnesses as well as confessions by accused persons, under Section 164 of the
Code. The Supreme Court also observed in State of U.P. V. Singhara Singh17
that Section 164 would be rendered wholly nugatory if the procedure prescribed
by that provision was not held to be mandatory. Section 164 strikes a fine balance
between the interests of the investigating agency and the accused person, and this
is the primary reason for judicial insistence on strict compliance with the
prescribed procedure. As rightly observed by a Full Bench of the Madras High
Court in State of Madras V. G.Krishnan,18 the object of recording a statement
under Section 164 is to deter a witness from changing his version later by
succumbing to temptations, influences, or blandishments.

The Evidentiary Value of Statement Recorded u/s 164

The significance in a criminal trial, of such statements recorded under Section 164,
can be understood only through a scrutiny of various provisions of the Indian
Evidence Act, 1872. Any statement made before a Magistrate and duly recorded
under Section 164 is considered as a Public Document u/s 74 of the Indian
Evidence Act, 1872.19 Written documents containing such statements are also
presumed to be genuine as well as duly recorded, under Section 80 of this Act.
The effect of this provision is to dispense with the examination of the Magistrate
who recorded the statement under Section 164. Moreover, Section 91 of the Indian
Evidence Act, 1872, also excludes oral evidence in cases such as Section 164,
where the contents of the statements are required by law to be reduced into
Documentary form. As per Section 91, only the written statement recorded under
Section 164 can be used as evidence of the verbal statement made by the witness
before the Magistrate. These provisions of the Indian Evidence Act, 1872, read
together, permit the admissibility of statements made by witnesses to the
Magistrate, as long as such statements are duly recorded under Section 164.20

INDIAN EVIDENCE ACT

17 A.I.R. 1964 S.C. 358
18 A.I.R. 1961 Mad 92
19 Ibid
20 Padmanabhan Ananth, Retraction of Statements Made by Witnesses: Need for Legal Reform, accessed at
British Councils Legal eNews publication
Certain other provisions of the Indian Evidence Act, 1872, govern the use of such
statements in a criminal trial, and thereby merit our attention. Section 141 of the
Indian Evidence Act, 1872 defines leading questions, whereas Section 142
requires that leading questions must not be put to witness in an examination-in-
chief, or in a re-examination, except with the permission of the Court. The court
can however permit leading questions as to the matters which are introductory or
undisputed or which in its opinion have already been sufficiently proved. Section
154 authorizes the court in the discretion to permit the persons who call a witness
to put any quest to him which might be put in cross examination by other party.
Such questions will include:-
1. Leading questions (Section 143 of Evidence Act)
2. Questions relating to his previous statements (Section 145 of Evidence
Act)
3. Questions, which tend to test his veracity to discover who he is and
what his position in life or to shake his credit (Section 146 of Evidence
Act)
It is to be taken into account that the courts are under a legal obligation to
exercise the discretion vested in them in a judicious manner by proper application
of mind and keeping in view the attending circumstances. Furthermore the
permission of cross-examination Under Section 154 of the Evidence Act cannot
and should not be granted at mere asking of a party calling the witness.
If we analyze the language of Section 154 following points come into picture:-
a. Firstly, the provision (Section.154 of the Indian Evidence Act, 1872)
only talks about permitting such questions as may be asked in cross-
examination.
b. Secondly, the law nowhere mentions, the need to declare a witness
as hostile, before the provision can be invoked.
c. Thirdly, the judicial consideration (under Section154) is only to be invoked
when the court feels that the attitude disclosed by the witness is
destructive of his duty to speak the truth.
This shows that domestic law differs from common law to a significant degree in
this respect. Common law categorizes witnesses as hostile or adverse for
the purpose of cross-examination whereas Indian Law makes no such distinction.
All that law seeks to do is elicit hidden fact from the witnesses for the sole purpose
of determining the truth. Ultimately it is the court, which has to use its discretion
in granting the permission to ask such questions as referred in Sec 154 of the
Indian Evidence Act.21
Section 145 of this Act prescribes one of the most effective modes for
impeaching the credit of a witness. This section allows for the cross-examination
of any witness as to any previous statement made by him in writing. The previous
statement made by the witness can be used for the purpose of contradiction of the
witness, under this section, as long as his attention is taken to those parts of the
writing that are to be relied on for such purpose. Section 145 statutorily
incorporates one significant use of previous statements made by witnesses and
assumes prominence especially in the context of the general principle that such
statements cannot be used as substantive evidence. The other relevant provision is
Section 157 of the Act, which states that any former statement made by a witness
relating to the same fact, before any authority legally competent to investigate the
fact, can be used to corroborate the oral testimony.

Indian Penal Code, 1860 & The Offence of Perjury

The Indian Penal Code, 1860 under Section 191 defines Perjury as giving false
evidence. A witness has to give all the information correctly otherwise he will
have to face the trial under Section 191 of The Indian Penal Code & thereafter he
may be penalized under Section 193-195 of the same for the aforesaid offence.
Section 191 is applicable only when a person bound by an oath or by an express
provision of law to state the truth, or who is bound by law to state the truth, or
who is bound by law to make declaration upon any subject makes a statement. In
other words it means that he is under legal obligation to speak truth in view of the
oath administered to him or because of the express provision of law, which binds
him to speak the truth.22

Concept of Perjury

Perjury in general sense is considered as lying. Perjury in legal sense means lying
or making verifiable false statements on a material matter under oath or
21 Pandey Sharan Brisketu, Hostile Witnesses in Our Criminal Justice System, 2005 Cr.L.J( Jour.) 17
22 Chaterjee Mamta, Problem of Hostile Witness, available at www.legalservicesindia.com
affirmation in a court of law or in any of various sworn statements in writing.
Perjury is a crime because the witness accused23 has sworn to tell the truth &,
for the credibility of the court, witness testimony must be relied on as being
truthful.24 Perjury is considered as a very serious crime as it could be used to
usurp the authority of the courts, resulting in miscarriage of justice. It has been
advocated by some of the jurists and judges that mere stringent and swift action
for perjury is one antidote to stop the hostile witnesses.
The perjury principles and norms are applied to witnesses who have admitted or
affirmed that they are telling the truth. A witness who is unable to swear to
tell the truth uses affirmative. For example, in the United Kingdom and till a
little while ago in India, a witness may swear on the Bible or holy book. If a
witness has no religion, or does not wish to swear on a holy book, the witness may
make an affirmation he or she is telling the truth instead. In some countries such as
France, suspects cannot be heard under oath and thus do not commit perjury,
whatever they say during their trial.25The matter of perjury laws recently gathered
considerable attention. The offence of perjury is not only applicable to criminal
cases, but also extends to other judicial proceeding including civil case being tried
by civil courts exercising original jurisdiction. While the problem of perjury in
criminal cases is generally confined to giving of false evidence on oath, it has a
wider spectrum as far as civil cases are concerned and includes giving false
evidence, fabricating false/forged documents to be used as evidence etc.
Statements of interpretation of fact are not perjury because people often make
inaccurate statements unwittingly and not deliberately. Individuals may have
honest but mistaken beliefs about certain facts or their recollection may be
inaccurate like most other crimes in the common law system, to commit the act,
and to have actually committed the act (the actus rues).

23 Perjury also relates to false statement made by the accused, as statements of an accused should be proved or
disproved on evidence. Mr. Bill Clinton, President of U.S.A was charged for perjury for lying in Monika Lewinsky
incidence. He survived an impeachment attempt by congress.
24 Bhat Sairam, Perjury: Under Estimated Reasons for Failure of the Justice Delivery System in India, Kare
Law Journal, August 2006 pp. 73-78
25 Ibid
Perjury: A Critical Appraisal of Indian Law
There are some specific provisions dealing with the offence of perjury. The
section 191 of IPC26 defines perjury as "giving false evidence" and by
interpretation it includes the statements retracted later as the person is presumed to
have given a "false statement" earlier or later, when the statement is retracted. But
hardly anyone, including the legal experts, could recall a single case in which a
person was prosecuted for making a false statement before the court.
Any statement tendered under oath on an affidavit also constitutes perjury. Under
section 191 of IPC, 2 7 an affidavit is evidence and a person swearing to a false
affidavit is guilty of perjury punishable under section 193 IPC that prescribes the
period of punishment as seven years imprisonment. Sec 195(1)(b) of the code of
criminal procedure provides that no court shall take cognizance inter- alia of the
offence of perjury under Section 193 to 195 except on the complaint in writing of
that court or the court to which that court is subordinate. Section 340 of Criminal
Procedure Code prescribes the procedure to be followed for making a complaint
contemplated by Section 195. Section 344, Criminal Procedure Code however
prescribes an alternative summary procedure. It provides that if the Court of
Sessions or Magistrate of first class if any time of delivery of judgment in the case
expresses an opinion that the witness appearing in such proceeding had knowingly
or willfully given false evidence or fabricated false evidence for use in the
proceedings, the court may if satisfied that it is necessary and expedient in the
interest of justice that the witness should be tried summarily, take cognizance after
giving reasonable opportunity of showing cause, try such offence summarily and
sentence him to imprisonment which may extend up to three months or to fine up
to rupees five hundred or with both.

26 Indian Penal Code, 1860

27 Ibid
Certain legal provisions dealing with the offence of perjury are
discussed as under:

Punishment for false evidence28

Whoever intentionally gives false evidence in any stage of a judicial proceeding,
or fabricates false evidence for the purpose of being used in any stage of a judicial
proceeding, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine; and whoever
intentionally gives or fabricates false evidence in any other case, shall be punished
with imprisonment of either description for a term which may extend to three
years, and shall also be liable to fine.
Prosecution for Contempt of Lawful Authority of Public Servants, for Offences
against Public Justice and for Offences relating to documents given in
Evidence29:
Under this section no Court shall take cognizance-
a. of any offence punishable under sections 172 to 188 (both inclusive) of the
Indian Penal Code (45 of 1860), or
b. of any abetment of, attempt to commit, such offence, or
c. of any criminal conspiracy to commit, such offence
Except on the complaint in writing of the public servant concerned or of some
other public servant to whom he is administratively subordinate;
1. of any offence punishable under any of the following sections of the Indian
Penal Code,(45 of 1860) namely, sections 193 to 196 (both inclusive), 199,
200, 205 to 211 (both inclusive) and 228, when such offence is alleged
to have been committed in, or in relation to, any proceeding in any Court,
or
2. of any offence described in section 463, or punishable under section
471, section 475 or section 476, of the said Code, when such offence is
alleged to have been committed in respect of a document produced or
given in evidence in a proceeding in any Court, or

28 Section 193 Indian Penal Code, 1860

29 Section 195 Indian Penal Code, 1860
 3. of any criminal conspiracy to commit, or attempt to commit, or the
abetment of, any offence specified in sub-clause (I) or sub-clause
(ii), except on the complaint in writing of that Court, or of some other
Court to which that Court is subordinate.
Procedure in the cases mentioned in section 195 Indian Penal Code,
186030:
This section confers an inherent power on a Court to make a complaint in
respect of an offence committed in or in relation to a proceeding in that Court, or
as the case may be, in respect of a document produced or given in evidence in a
proceeding in that Court, if that Court is of opinion that it is expedient in the
interest of justice that an enquiry should be made into an offence referred to in
clause (b) of sub-section (1) of Section 195 and authorizes such Court to hold
preliminary enquiry as it thinks necessary and then make a complaint thereof in
writing after recording a finding to that effect as contemplated under sub-
section(1) of Section 340. The words "in or in relation to a proceeding in that
Court" show that the Court which can take action under this section is only
the Court operating within the definition of Section 195(3) before which or in
relation to whose proceeding the offence has been committed. There is a word of
caution in built in that provision itself that the action to be taken should he
expedient in the interest of justice. Therefore, it is incumbent that the power
given by this Section 340 of the Code should be used with utmost care and after
due consideration.
Using Evidence known to be False31:
Whoever corruptly uses or attempts to use as true or genuine evidence any
evidence, which he knows to be false or fabricated, shall be punished in the same
manner as if he gave or fabricated false evidence.
False Statement made in declaration, which is by Law receivable
as Evidence32:
Whoever, in an declaration made or subscribed by him, which declaration any
Court of Justice, or any public servant or other person, is bound or authorized by

30 Section 340 Cr.P.C,1973

31 Section 196 Indian Penal Code, 1860
32 Section 199 Indian Penal Code, 1860
law to receive as evidence of any fact, makes any statement which is false, and
which he either knows or believes to be false or does not believe to be
true, touching any point material to the object for which the declaration is
made or used, shall be punished in the same manner as if he gave false evidence.
In context of cases under above sections section 195 of the Criminal
Procedure Code is applicable. According to this section the Court shall take
cognizance of such offence only on the complaint of such Court or any other
Court to which such Court is subordinate.
Perjury: Judicial Approach
1. K. Karunakaran v TV Eachara Warner,33established the two pre-
conditions for an enquiry held under Section 340(1) of the Code. These
are that there has to be prima facie case to establish the specified offence
and that it has to be expedient in the interest of justice to initiate such
enquiry.
2. This was relied upon in the case of KTMS Mohd. V UOI,34 where the
Court held that Section 340 of the Code should be alluded to only for the
purpose of showing that necessary care and caution is to be taken before
initiating a criminal proceeding for perjury against the deponent of
contradictory statement in a judicial proceeding. In India, law relating to
the offence of perjury is given a statutory definition under Section 191
and Chapter XI of the Indian Penal Code, incorporated to deal with the
offences relating to giving false evidence against public justice. The
offences incorporated under this Chapter are based upon recognition
of the decline of moral values and erosion of sanctity of oath.
Unscrupulous litigants are found daily resorting to utter blatant
falsehood in the courts which has, to some extent, resulted in polluting
the judicial system.35
3. In State of Gujrat v Hemang Prameshrai Desai,36 the Court stressed upon
the need to corroborate the falsity of a statement with ample evidence.
Mere police evidence was held insufficient to convict the accused. Also
where the conviction of the accused was based on his voluntary
33 AIR 1978 S.C. 290
34 1992(2) RCR (Criminal) 398 (S.C.)
35 Re: Suo Moto Proceedings against Mr. R. Karuppan, Advocate, AIR 2001 SC 2004 (Para 12)
36 1966 Cri. L. J. 474
 admission of guilt, his statements were to be construed literally and
strictly.
4. In the same year in the Allahabad High Court in Narmada Shankar v
Dan Pal Singh,37 a case of malicious prosecution, where defendant-
respondent was charged under Section 193 of the IPC for having arrested
the Petitioner and subsequently lying under oath as to the presence of such
orders, admitted during cross-examination that he had previously lied
about the orders. It was held in this case that when a witness comes to
Court prepared to make a false statement and makes it, but is cornered
in cross- examination and compelled to admit his false statements he
cannot claim that the admission neutralises the perjury committed by
him. The real test in all such cases was held to be whether the witness
voluntarily corrected himself due to realisation of his error or genuine
feeling of remorse before his perjury was exposed. In the given
circumstances, though, the defendant was let off with a warning.
5. The Supreme Court in Re: Suo Moto Proceedings38 against Mr. R.
Karuppan, Advocate has stressed upon stern and effective to prevent
the evil of perjury. It remains a fact that most of the parties despite being
under oath make false statements to suit the interests of the parties
calling them. In the present case the respondent filed an affidavit stating
that the age of the then CJI was undetermined by the President of
India according to Article 217 of the Constitution of India in another
matter in 1991. As regards this the affidavit prima facie was held to
have made a false statement. It was not disputed that an affidavit is
evidence within the meaning of Section 191 of the Indian Penal Code
and a person swearing to a false affidavit is guilty of perjury punishable
under Section 193 IPC. The respondent herein, being legally bound by an
oath to state the truth in his affidavit accompanying the petition was
prima facie held to have made a false statement which constitutes an
offence of giving false evidence as defined under Section 191 IPC,
punishable under Section 193 IPC.

37 AIR 2001 S.C. 2004

38 AIR 2001 SC 2204
 6. In KTMS Mohd. V. UOI,39 the Bench observed that the mere fact that a
deponent has made contradictory statements at two different stages in
a judicial proceeding is not by itself always sufficient to justify a
prosecution for perjury under Section 193 IPC but it must be
established that the deponent has intentionally given a false statement
in any stage of the Judicial proceeding or fabricated false evidence for
the purpose of being used in any stage of the judicial proceeding. Further,
such a prosecution for perjury should be taken only if it is expedient in
the interest of justice. According to Section 199 of the IPC to constitute
an offence the declaration made by the accused must be of such nature
as may be admissible as evidence in a Court of Law and any public
authority or public servant must be bound by law to accept such
declaration as evidence. The statement, which is alleged to be false in
such a declaration, must be of material importance to the object of
the declaration and the accused must have reasonable knowledge of its
falsity. If the falsity of the statement is proved then the accused will be
punished as he would be for giving false evidence.
7. In Jotish Chandra v. State of Bihar,40 the falsity of the statement as
touching upon any point material to the object of the declaration was
held to be essential to constitute an offence under Section 199 of the IPC.
8. The section was subjected to further interpretation in M. S. Jaggi v.
Registrar, Orissa HC,41 herein the accused was held to have made a
reckless and false allegation against a Judge in order to have a revision
petition in which he is a party, transferred to another Judge. Dwelling upon
the essentials of constituting a crime under Section 199 of the IPC there
must be a deliberate false statement. Statement made in a reckless and
haphazard manner, though untrue in fact, need not constitute an offence
when the person making such statements immediately admits the mistake
and corrects the statements. If, however, a person makes a reckless and
false allegation against a Judge in an affidavit, he lays himself open to
prosecution under this section.

39 A.I.R. 1969 SC 7
40 A.I.R. 1969 SC 7
41 1983 Cri. L.J. 1527
 9. The Case of Jeffrey Archer; Jeffery Archer, a well-known novelist
of Britain, was sentenced for four years imprisonment for
perjury. In 1987 he sued the Daily Star for libel when they
alleged that he had sex with an Irish prostitute, Monica
Coughlan. He won the case and was 500,000 damages,
but not everyone was convinced by the verdict. The
journalist, Adam Raphael wrote an article at the time which
carefully avoided libel but implied a number of things that
Archer probably had gone with a prostitute; that at the trail
Archer and his lawyers had shifted attention from this issue
to the tactics used by the Daily Star to trap Archer; and
that the Daily Star had only themselves to blame for this.
Before sentencing him the judge Mr. Justice Potts told Lord
Archer. "These charges represent as serious an offence of
perjury as I have had experience of and have been able to
find the books". The jury found him guilty of lying and
cheating in his 1987 libel case against the Daily Star. The
verdicts were unanimous on each count. Lord Archer, who
was ordered to pay 175,000 costs within 12 months, was
told by the judge he would have to serve at least half of his
sentence.42 This case has set a new trend in the
contemporary society about the sanctity of legal system in
Britain.
10. The Indian scenario, on the contrary presents a rather dismal picture.
Even the apex court of the country expressed its concern over this
matter time and again. In one of the cases, the Supreme Court held that
"unscrupulous litigants are found daily resorting to utter blatant falsehood
in the Courts". While "most of the witnessmakes false statements to
suit the interests of the parties calling them". The perjurer in the case
happens to be Advocate R. Karuppan, who is also president of the
Madras High Court Advocates Association. The perjury committed by
Karuppan is that he filed a petition questioning the authenticity of Justice

42 http://news.bbc.co.uk/1/hi/uk/1424501.stm.
 A. S. Anand's date of birth in spite of knowing full well that the issue had
already been settled by the President of India. Ordering a complaint of
perjury to be filed against Karuppan before a magistrate, the Apex court
warned; "If the system is to survive, effective action is the need of the
time.43 Indeed, Karuppan's perjury may not be exceptional but the
action initiated in his case that too suo motu, seems to be an exception to
the general practice among the courts to condone perjury. And it would
not be out of place to suggest that Karuppan also would have probably
got away with his perjury had the aggrieved party not been former Chief
Justice of India A S Anand himself.44

HOSTILE WITNESS: Recent Judicial Pronouncements

Best Bakery case45

Best Bakery trial is the glaring example of miscarriage of justice where the
witnesses turned hostile due to external pressures by the rich and powerful
accused. The first track trial began on May 9 and was completed on 29 June,
20003. Twenty One persons were named accused in the case and the prosecution
mainly depended on the testimony of the survivor Zahira Sheikh. Before the newly
instituted court, she refused to identify any of the accused and was contrary to her
previous statement before the police and the National Human Rights Commission.
The court recorded a verdict that the prosecution had failed to prove the charges.
Later Ms. Sheikh asserted that she had lied to the court under threat and fear for
her life.

The Case of Jessica Lal46

On April 29, 1999, leading socialite Bina Ramani organized a party at her
restaurant, Tamarind Court Cafe. Several youngsters and models were serving
drinks at the 'Once upon a time' bar, including Jessica Lall and her friends Malini
Ramani and Shyan Munshi.

43 Perjury Here and There Indian Express: July 26, 2001

44 As quoted in an article by Sairam Bhatt in Kerela Law Journal, 2006
45 (2004) 4 SCC 158
46 2001 Cri.L.J. 2404
At about 02:00 hours when the party was almost over, Manu Sharma with his
friends Amardeep Singh, Alok Khanna, Amit Jhingan and Vikas Yadav, allegedly
entered the restaurant and demanded liquor from Jessica. Since the bar was
being closed, Jessica told Sharma that no more drinks would be served. After
some altercation, Sharma lost his temper and fired his gun once in the air and the
second time at Jessica. The bullet struck her temple and she died on the spot.
Sharma fled from the restaurant, leaving his car. Then on 3rd August 1999, Delhi
police filed the charge sheet in the court of metropolitan magistrate, where Manu
Sharma was named the main accused charged under section 302, 201, 120(b) and
212 of Indian Penal Code and sections 27,54 and 59 of Arms Act. While other
accused, like Vikas Yadav, Coca-Cola Company officials Alok Khanna and
Amardeep Singh Gill (destroying evidence of the case and conspiracy); were all
charged variously under sections 120(b), 302, 201 and 212 of the IPC (for giving
shelter to the accused and destroying evidence).
The case went up for trial in August 1999. Four of the witnesses who had initially
said they had seen the murder happen eventually turned hostile. Shayan munshi
, a model and friend who was serving drinks beside Jessica Lall, changed his
story completely; as for earlier testimony recorded with the police, he said that the
writing was in Hindi, a language he was not familiar with, and it should be
repudiated. Also, it appears that the cartridges used in the murder were altered.
Although the gun was never recovered, these cartridges were for some reason sent
for forensic evaluation, where it turned out that they had been fired from different
weapons. This led to a further weakening of the prosecutions case.
After extensive hearings with nearly a hundred witnesses, a Delhi trial court
headed by Additional Sessions Judge S. L. Bhayana, acquitted 9 accused in Jessica
Lall Murder case, on 21 February 2006. Those acquitted were, Manu
Sharma,Vikas Yadav, Manus uncle Shyam Sundar Sharma, Amardeep Singh Gill
and Alok Khanna, both former executives of a multinational soft drinks company,
cricketer Yuvraj Singhs father Yograj Singh, Harvinder Chopra, Vikas Gill and
Raja Chopra. The judgment faulted the police for deciding on the accused first and
then collecting evidence against him, instead of letting the evidence lead them to
the murderer. Since the prosecution had failed to establish guilt beyond doubt, all
nine accused were acquitted.
After an immense uproar, hundreds of thousands e-mailed and smsed their
outraged on petitions forwarded by media channels and newspapers to the
president and other seeking remedies for the alleged miscarriage of justice. On 25
March 2006, the Delhi High Court admitted an appeal by the police against the
Jessica Lall murder acquittals, issuing non-bailable warrants against prime accused
Manu Sharma and eight others and restraining them from leaving the country. This
was not a re-trial, but an appeal based on evidence already marshalled in the lower
court.
On 19 April 2010, the Supreme Court of India has approved the life sentence for
the guilty. The two judge bench upholding the judgement of the delhi high court
stated that, The prosecution has proved beyond reasonable doubt the presence
of Manu Sharma at the site of the offence.47

Phoolan Devi Case48

An eye-witness in the Phoolan Devi murder case turned "hostile" by claiming that
his earlier testimonies against prime accused Sher Singh Rana and others were
given under police pressure. Kalicharan, the personal assistant of the slain bandit-
turned politician, who in 2005 had told the court that he could identify the
assailants, was declared hostile by the prosecution after he resiled from his
statements saying the accused had "muffled up" their faces at the time of crime.
In fact, I was shown the photographs of Rana and others at the police
station and was threatened to identify them in the court at the time of recording of
my testimony, he said before Additional Sessions Judge V K Bansal.
Earlier, he had testified in court that though he did not see the faces of
Phoolan's killers but going by the height and built of the accused, it was clear that
Rana alias Sheru alias Pankaj was firing at the MP while his accomplice was firing
at Balender, personal security officer (PSO) of the leader.
The witness, who had earlier said that a recovery memo, bearing his and
accused Rana's signatures, was prepared at 44, Ashoka Road residence of the MP,
found himself in a peculiar situation when special public prosecutor S K Saxena
asked about the veracity of the documents.

47 Sidhartha Vashisht @ Manu Sharma V. State (NCT Of Delhi) Bench: P. Sathasivam, Swatanter Kumar
48 57 (1995) DLT 154
"Which of your statements is correct", Saxena asked saying once he told that
accused signed at the memo in his presence and later gave an opposite
statement controverting his earlier utterances. My recent statement is correct,
Kalicharan said claiming that his earlier testimonies were recorded under police
pressure.

BMW Hit & Run Case49

On 10 January, 1999, a BMW driven by Sanjeev Nanda, grandson of the former
Chief of Naval Staff and arms dealer admiral S.L. Nanda had allegedly run over
sleeping pavement dwellers in Delhi. Three people died on the spot and othersr
received serious injuries. As the trial progressed, a large number of witness turned
hostile- Monoj Mallick, the lone survivor of hitn- run, told the court that he was
hit by a truck. Key witness, Hari Shankar, refused to identify the BMW and
another witness absconded. In fact, none of the witness supported the prosecution.
In the end, Sidharth and Manik were granted bail.

Prof. Sabharwals Case50

Late Prof. H.S. Sabharwal was a professor in Government College, Ujjain, MP.
He was brutally beaten up by certain persons, for taking a rigid stand in the
college union elections. Though the assaults were made in the presence of several
police officials, media persons and members of public, attempt has been made to
project as if his death was as a result of an accident. Initially, First Information
Report was lodged and after investigation charge sheet was filed and charges have
been framed against several persons. During examination of several witnesses who
were stated to be eye-witnesses such witnesses resiled from the statements made
during investigation. There were even three police witnesses who also resiled

49 (2003) 10 S.C.C. 670

50 Himanshu Singh Sabharwal V. State of M.P. and Ors
from their earlier statements. They are Dhara Singh (PW-32), Sukhnandan (PW-
33) and Dilip Tripathi (PW-34).
The Supreme Court came heavily upon the state Government of M.P. by
issuing a contempt notice and asked its explanation about the action taken against
the police officials who turned hostile before the session court. The Bench in this
case observed: "What action have you taken against those police officers turn
hostile? Our anxiety is that if every police officer turns turtle all the accused will
be given clean chit.51 This case assumes significance as some 70 persons including
police officers were present at the scene of occurrence and none came forward for
testimony. The Police officials who earlier submitted their statements naming the
accused later turned hostile.
Two sensational criminal cases- The Best Bakery related to the Gujarat
communal riots and Model Jessica Lalls murder have brought into sharp focus
the issue of Perjury. The criminality of buying of witnesses by influential
accused can be handled by strictly enforcing the penal law on perjury. Zahira
Sheikh the key witness in the Best Bakery case was sentenced to imprisonment
for the offence of perjury.52 While the Bombay special trial court in the Best
Bakery case has issued notices to Zahira Sheikh for perjury and false
evidence as she had retracted her statements several times, the Delhi high court
has suo moto taken cognizance of the police /prosecution theory on hostile
witness in the Jessica Lall murder case. Though Zahira is not the lone example
of perjury-in a majority of cases in Indian courts, false evidence or retraction of
statement is a common phenomenon. Our cavalier toleration of perjury is a
major, underestimated reason why our justice system has been farcical.53
The brazenness that was seen in BMW case where the lawyers were caught in a
sting operation by a TV channel for bribing a key witness to turn hostile is a real
slur on the judicial history of this nation. Such instances call for strict penal
action. The experiences in many sensational cases wherein the witness turned
hostile lead us to look at the legal remedy of this criminality which too often

51 The Hindustan Times, July 11,2007

52 Zahira Sheikh, the main prosecution witness in the high profile Best Bakery case, has been sentenced to a year in
prison for lying in the court and with a fine of rupees 50,000. Zahira Sheikh changed his testimony many times. A
committee appointed by the Supreme Court said it believed she had been bribed for lying in the court.
53 R. Venkataraman, The whole truth about perjury, INDIAN EXPRESS, Saturday, February 25, 2006
involves "buying" of witness by influential accused can be handled only by strictly
enforcing the penal law on perjury
However, the action against making a false statement should be initiated
during the trial itself, & not at the end of it-which may take a long time. That may
be a deterrent against persons who intentionally mislead the court or make false
statements under oath or file tainted affidavits54 much against the public good.
Initiating action against a person for perjury after the trial is over is one of the
reasons why in India several perjury cases go totally unnoticed as a fresh trial
begins on perjury running into years.55

In Swaran Singh V. State of Punjab,56 J. Wadhwa expressing the plight of

witnesses stated that:
Perjury has also become a way of life in the law courts. A trial judge
knows that the witness is telling a lie & is going back on his previous statement,
yet he does not wish to punish him or even file a complaint against him. He is
required to sign the complaint himself, which deters him from filing the
complaint. Perhaps law needs amendment to clause (b) of Section 340 (3) of
Cr.P.C. in this respect as the High court can direct any officer to file a complaint.
To get rid of the evil of perjury, the court should resort to the use of the
provisions of law as contained in chapter XXVI of Cr.P.C.
In Surinder Singh V. State of Haryana, 57 The Supreme Court on witness resiling
from statement and denying participation during investigation observed:
We are pained to see that the trial courts willingly or unwillingly are not
taking action against hostile witnesses. A number of witnesses who should be
deposing as per their statements given under section 161 of the Code of Criminal
Procedure and should be supporting the prosecution turn hostile. The trial court
cannot be mute spectator to the statement of such witnesses, when the witnesses
are intentionally giving false evidence (a statement to help the accused). Action
should be taken under the relevant provisions of law against such witnesses, so
that the administration of criminal justice does not suffer.

54 The Delhi High Court on April17th 2005 summoned the Deputy Commissioner, Municipal Corporation, Delhi, East
N.K. Sharma and three other officials to appear before it following a complaint that the officials have filed a false
affidavit regarding the ongoing demolition drive in the capitals Krishnanagar and Gandhinagar areas. http: // www.
Newkerala.com/
55 The Law Commission of India has examined aspects of this in 1958, 1966 and more recently in a
consultative paper in 2005.
56 A.I.R. 2000 S.C. 2017
57 2009 Criminal Court Cases 921 (P&H) (DB)
A witness intentionally giving false or fabricated evidence in the court, the very
court before which a hostile witness gave false evidence itself has power
under Section 344 Cr.P.C. to award punishment to the witness summarily after
giving reasonable opportunity of showing cause why he should not be so
punished. Provisions of section 344 should be used effectively and frequently to
stop the menace of perjury, which has bearing on alarming rise. Witnesses taking
U- turn at trial has become a menace to criminal judicial system.
In another case Mahila Vinod Kumari v. State of Madhya Pradesh,58 where
the petitioner had lodged FIR against two persons on the allegations of
having committing rape and it was only on the basis of the same that charge sheet
was filed against them and they were put to trial. During trial, the prosecutrix
resiled from her statement made during the investigation and even denied lodging
of the FIR or having had given any statement to the police.
The Hon'ble Supreme Court observed as under:
"The purpose of enacting Section 344 Cr.P.C. corresponding to Section 479A of
the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the Old
Code') appears to be further arm the Court with a weapon to deal with more
flagrant cases' and not to take away the weapon already in its possession. The
object of the legislature underlying enactment of the provision is that the evil
of perjury and fabrication of evidence has to be eradicated and can be better
achieved now as it is open to the Courts to take recourse to Section 340(1)
(corresponding to Section 476 of the Old Code) in cases in which they are
failed to take action under Section 344 Cr.P.C."
"This Section introduces an additional alternative procedure to punish perjury
by the very Court before which it is committed in place of old Section 479 A
which did not have the desired effect to eradicate the evils of perjury."
"For exercising the powers under S.344 of the Code, the Court at the time of
delivery of judgment or final order must at the first instance express an opinion
to the effect that the witness before it has either intentionally given false
evidence or fabricated such evidence. The second condition is that the Court
must come to the conclusion that in the interests of justice the witness

58 2008(8) SCC 34
concerned should be punished summarily by it for the offence, which appears to
have been committed by the witness. And the third condition is that before
commencing the summary trial for punishment the witness must be given
reasonable opportunity of showing cause why he should not be so punished. All
these conditions are mandatory. The object of the provision is to deal with the
evil of perjury in a summary way."
The Hon'ble Supreme Court held that this provision should be used effectively
and frequently to stop the menace of perjury, which has bearing on alarming
rise. The apex Court held as under:
"The evil of perjury has assumed alarming propositions in cases depending
on oral evidence and in order to deal with the menace effectively it is
desirable for the courts to use the provision more effectively and frequently
than it is presently done."

FACTORS RESPONSIBLE FOR WITNESSES TURNING

HOSTILE
The experiences have shown that the witnesses of the police or prosecution tend to
turn hostile during the prosecution of the case. The instances of disowning the
statements made before the police has grown to be a real dilemma before the
system of criminal justice in this country. This weakens the whole case in the
interest of the offender. While there is enough popular understanding as what
causes a witness to turn hostile, there is hardly any empirical knowledge
confirming the same. It is generally felt that the main cause for the high acquittal
rate in our criminal justice system is the witness turning hostile. In order to get rid
of this cross examination as early as possible, either the witness will give the false
statements or to make the matter worse, he will turn hostile i.e. he will retract from
his previous statement.
It was an avowed task of the police and the prosecution to protect witness
earlier. Now it does not appear to be so. That is why witness after witness
turning hostile while deposing for the state. (The Supreme Court)59
A witness may turn hostile for various reasons. Generally it is the combination of
money and muscle power, threat / intimidation, inducement by various means,
allurement/seduction etc. but the major one being the absence of protection to

59 Paliwal, Anand Witness Protection Program- Necessary to Ensure Justice, 2008 Cr.L.J. (Jour.) P. 113
the witnesses during and after the trial. The witness is afraid of facing the
wrath of the convicts who may be well connected. Witnesses are extremely
vulnerable to intimidation in the form of threats by the accused. The Peoples
Union for Civil Liberties (PUCL) made a press release on July 2, 2003
pertaining to the Best Bakery case saying that there were two ways to explain why
witnesses turn hostile. The first is that the police had recorded the statements
incorrectly. The second and more plausible was that the police had recorded the
statements correctly but was retracted by the witnesses because of intimidation
and other methods of manipulation.60
A systematic research is needed to know as to why the witnesses turn
hostile. There are experiences that in the olden days it was pretty rare to see
prosecution witness going hostile. Its not that money and muscle power factors
were absent in those days. It seems it has something to do with the quality of
investigation. The SHO himself used to carefully conduct the entire process of
investigation and it was seldom left to the junior functionary. Secondly, the SHO
used to remain present during all the hearings and his presence was a definite
deterrent to the witness to twist his statements. Thakur.J61 (2001) is of the opinion
that earlier an eye- witness used to be summoned only once and he would
be examined on the same day. Hostile witness is also 'stock witness' or pocket
witness with police and they are planted to go hostile only.

Das J.(2002)62 quoted many reasons for the hostility of witness and resultant
effects on declining rates of conviction in India. His paper report following data;
According to a recent survey by the Directorate of Civil Rights Enforcement
(DCRE) the following are the main reasons for the low conviction rate:
1. Hostile witnesses 26 per cent
2. Hostile victims 27 per cent
3. Lack of abysmally low at 6.8 percent
The situation has reached such a stage that, in cases relating to lesser grave
offences, there are certain "stock witnesses" who give evidence in trials. The
problems in this instance are compounded by the fact that people are not willing to

60 Kejriwal Ankit, Need For a Witness Protection Programme: The Solution to the Problem of Hostile
Witness available at www.legalservicesindia.com
61 From the Lawyers Collective, August 2001
62 Witness Protection- Legal Crisis in India, Cri. L. J, 2002.
come forward or are discouraged to give evidence in cases while the police claim
that they have to make do with whoever is available.

Common causes for hostility can be summed up as follows:

Absence of Witness Protection Programs
The need for comprehensive witness protection legislation has been long felt in
India. In most cases, witnesses are threatened or injured-sometimes even
murdered-before giving testimony in Court. In Swaran Singhs case, the Apex
court also observed, not only that a witness is threatened; he is maimed; he is
done away with; or even bribed. There is no protection for him.63 The threat to
the lives of witnesses is one of the primary reasons for them to retract their earlier
statements during the trial. Section 151 and 152 of the Indian Evidence Act, 1872
protect the victims from being asked indecent, scandalous, offensive questions,
and questions likely to insult or annoy them. Apart from these provisions, there is
nothing in the law to protect witnesses from external threats, inducement or
intimidation. 64
Protracted Trials
Apart from the absence of witness protection programme another major reason of
this growing menace is protracted trials. The working of judicial process is very
slow. Several dates are fixed for cross- examination of the witnesses, who
becomes frustrated over because of being summoned again and again only to find
that the date is adjourned. The frustration takes its toll, & the witness decides to
turn hostile to get rid of the harassment. In Swaran Singhs Case, the Supreme
Court said:
It has become more or less a fashion to have a criminal case adjourned
again and again till the witness tires and he gives up. It is the game of
unscrupulous lawyers to get the adjournments for one excuse or the other till a
witness is won over or is tired, (omitted). In adjourning the matter without any
valid cause a Court unwittingly becomes party to miscarriage of justice. A
person abhors becoming a witness. It is the administration of justice that suffers.

63 Swaran Singh Vs. State of Punjab 2000 Cr.L.J 2780 (S.C.)

64 Justice H. Suresh, New Law Needed for Witness Protection, Combat Law- Vol. IV, Issue 1 April - May, 2005,
www.combatlaw.org
The evil of incessant adjournments for sufficient reasons and otherwise has
plagued the plagued the Indian judiciary for long. They are instrumental in
causing hardship and inconvenience to the parties and witnesses. They are
required to come repeatedly to courts, from long distances, at their own expense,
to know that the case is only posted for hearing on another day. This causes
frustration for the witnesses, and thus gives an opportunity to the opposite party to
threaten or induce them not to speak the truth.65 If the witness does not turn up at
the fixed date, harsh measures are initiated against him. Even if he/she appears at
the fixed date, there is likelihood that the case would be again adjourned. Besides,
even if he appears and evidence is taken, he is subjugated by aggressive defence
counsels, or declared hostile or unreliable by the prosecutor.66
Section 309 of the Cr.P.C. regulates adjournments. It says that the
"proceedings shall be held as expeditiously as possible" and that the Court shall
record the reasons for adjournments (Section 309(1)). If, after the commencement
of the trial or taking Cognizance of an offence, the Court finds reasons for
adjournment, it may do so by recording such reasons. (Section 309(2)). Proviso 2
of clause (2) says that when witnesses are in attendance, any adjournment or
postponement shall be granted only after examining them, except for special
reasons when it may be done without examining them, which shall be put in
writing. The object of the Section is to speed up trials and put an end to the lax
practice of Magistrates who hear cases piecemeal involving many adjournments.
Unless absolutely necessary, courts must not grant adjournments.67 However, the
Code does not prescribe any remedy if the Courts do not adhere to the general or
particular direction in sub-section (l).68 The Report of the Justice Malimath
Committee on Criminal Justice Reforms suggested that Section 309 should be
amended to make it obligatory to award costs against the party who obtains the
adjournments. 69

th
65 178 , Law Commission Report, 2003, p. 142
66 Law Commission of India 154the Report on the 'Code of Criminal Procedure, 1973', Vol. 1 Chapter X, "Protection
and Facilities to witnesses", 1996 p. 43
67 S. C. Sarkar & Prabhas C. Sarkar, Law of Criminal Procedure, India Law House, New Delhi, (8th Ed., 2004), p.
1013.
68 However, Section 437(6) of the Code enables the accused to obtain bail if he is in detention, and his trial in the
Magistrate's Court is not completed within 60 days from the first date fixed for hearing; R V. Kelkar, Criminal Procedure, Dr.
K. N. Chandrasekharan Pillai (Ed.), Eastern Book Company, Lucknow, (4th ed., 2004), p. 391.
69 178th Law Commission Report,2003, p.142
Easy Availability of Bail to the Accused
In many cases involving high profile personalities or heinous crime, the courts
easily grant bail to the accused thereby making the witness vulnerable to threats
and intimidation by the accused. No doubt Section 439(2) of the Code of Criminal
Procedure provides for the arrest of a person who has been released on ball, it is
seldom used by the State in cases where there exists a reasonable apprehension
that the accused might try to influence the witness.
Defaults in Payments of Allowances
th
The Law Commission of India 154 Report70 observed that the allowances paid
to witness for appearing in Court are inadequate, and called for a prompt
payment, no matter whether they are examined or not. Section 312 of the Cr.P.C.
says subject to any rules made by the State Government, any Criminal Court may
if it thinks fit, order payment, on the part of Government, of the reasonable
expenses of any complainant or witness attending for the purpose of any
inquiry, trial or other proceeding before such Court under this Code.
However, in most cases proper diet money is not paid to the witnesses.
Lack of Adequate Facilities in Courts
Despite the crucial role of witnesses in criminal trials, the facilities provided to
them are minimal and insufficient. The 14th Law Commission Report71 highlighted
that in several States, the witnesses are made to wait under trees in Court
campuses, or in the verandahs of court houses. They are not protected from the
vagaries of the weather. Even the sheds in some courts are dilapidated and utilized
for other court purposes. Apart from suffering such indignities and inconvenience,
they have to spend time and money to come to courts from far distances.72
Use of Stock Witness
Stock witnesses refer to certain persons of doubtful credentials who are available
to serve the police as witnesses where real witnesses are not forthcoming.
Planting such pliable witnesses as prosecution witnesses quite invariably leads to
such witnesses turning hostile as they can be bought for a small price. The result is
th
70 Law Commission of India, The Code of Criminal Procedure, 1973(Act No. 2 of 1974), 154 Report, Fourteenth
Law Commission under the Chairmanship of Mr. Justice K. J. Reddy 1995-1997, in 1996
71 Law Commission of India ,Reform of Judicial Administration,14th Report , First Law Commission under the
Chairmanship of Mr. M.C.Setalvad 1955-1958, in 1958
72 Supra note 67
failure of case ending in acquittal of all the accused, there being no evidence or
reliable evidence on record.
Use of Money Power by the Accused
In many cases the witnesses are bought off or purchased with the use of money.
In such cases the victims/witnesses are mostly poor who are badly in need of
money. The procedure is simple. The prime witnesses in a case are contacted
either directly by the party or through the lawyers litigating that case and then
offered a sum of money for not cooperating in the investigation and/or are told to
take a pre decided stand at the trial. If, however, the trial has already started then
he is told to turn away from what he had said earlier or to contradict his own
statement.
Threat / Intimidation
The Delhi High court observed73 that witnesses in a large number of cases were
turning hostile due to intimidation and threat. The Home Ministry in its affidavit
admitted that in all important cases witnesses were under constant threat
from criminals. The affidavit said, There is need to take steps to stop
harassment of witnesses so that he does not feel frustrated. There is also urgent
need to provide adequate protection to the witnesses from intimidation by
criminals.
Other Factors
Political pressure, self-generated fear of police and the legal system, absence of
fear of the law of perjury, an unsympathetic law enforcement machinery and
corruption are some of the other reasons for witnesses turning hostile in the course
of trial. Psychological studies carried on witnesses seem to suggest that grueling
cross- examination, frequent adjournments; courtroom intimidations are some of
the major reasons that force a witness to turn hostile. The successful working of
the criminal justice system depends critically on the willingness of individuals to
furnish information and tender evidence without being intimidated or bought. As
symbolized by Zahira Sheiks flip flops in the Best Bakery case, the threat of
retaliation, which could include physical violence, is a major reason why
witnesses (some of them victim) do not cooperate.

73 Neelam Katara V. Union of India ILR (2003) II Del 377 260

HOSTILE WITNESS: Proposed Legislative Remedies
Today, hostility of witnesses in serious crimes and crimes committed by high
profile persons has challenged the system of criminal justice. As observed by the
Apex Court:
increasingly people are believing that laws are like spiders webs: if
some light or powerless thing falls into them, it is caught, but a bigger one can
break through and get away. Conducts which illegitimately affect the
presentation of evidence in proceedings before the courts have to be seriously
and sternly dealt with.74
Consistent action by our courts to punish the ones who turn hostile and those who
influence them is necessary in our criminal justice system for the truth to prevail.
Legislative measures in this regard have become the inevitable need of the hour to
maintain and improve the effectiveness of the criminal justice delivery system.
Protection to witnesses in all aspects, especially in sensitive cases would, to a
great extent, be effective in preventing them from turning hostile.75 The following
steps will go a long way in protecting witnesses from external influences and will
adequately control the malady of hostile witnesses:
Amendment in the Existing Law
Amendment to Section 161 and Section 162 Cr.P.C.
Statements of witnesses by police under section 161, Cr. P. C. should be signed by
the witnesses and used during trial of the case for corroboration and
contradiction of their testimony. The existing law under Section 162, Cr. P. C.
says that the person making it shall not sign the statement of witnesses under
Section 161. An amendment in the Cr. P. C. would to a small extent apply moral
pressure on the witness against changing his course in the court subsequently.
While the 14 th Law Commission Report suggested that the statement of every
prosecution witness who is to be examined at the trial should be reduced to writing
by the police officer, t h e 3 7 t h R e p o r t of the Commission took a step
further to suggest that the statement of every witness questioned by the police
should be recorded. The 41st report of the Commission however brushed aside the

74 Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 S.C.C. 374

75 Kaur Paramjit, Testimony of Hostile Witness : Recent Developments , available at
http://www.lawherald.in/
suggestion and said that there was no need to place any letter on the discretion of
the police- officer. The 178th Law Commission Report76 recommended that the
statement of a witness under Section 161 shall be recorded in the language of the
deponent, and shall be read over to him by the recording officer and the
signature or thumb impression shall be obtained on the statement. The copies of
the statement shall be sent to the Magistrate and the Superintendent of Police
of the District, immediately. This would ensure that the discrepancies in
investigation are eliminated.
Amendment to Section 164 Cr.P.C.
th
The 14 Law Commission Report77 made the following recommendations:

It is necessary to amend Section 164 Cr.PC so as to make it mandatory

for the investigating officer to get statements of all material witnesses
questioned by him during the course of investigation recorded on oath by
the magistrate. The statement thus recorded will be of much evidentiary value
and can be used as previous statement. Such recording will prevent the witnesses
turning hostile at their free will.
Obviously, the lawmakers failed to act on the excuse that to implement this
recommendation too large a number of magistrates will have to be appointed. In
the year 2001, the Law Commission headed by Justice B.P. Jeevan Reddy in its
177th Report recommended:
.In all offences punishable with 10 or more years imprisonment,
including offences for which death sentence can be awarded, the police shall
have the statements of all important witnesses recorded under Section 164 by a
magistrate. Indeed, it would be more appropriate if this is done at the earliest
opportunity i.e. at the very inception of the investigation. It is well-known
that generally witnesses stick to truth at the early stages but may change in course
of time.

76 Law Commission of India, Recommendations for Amending Various Enactments, Both Civil and Criminal,
th
178 Report , Sixteenth Law Commission under the chairman ship of Mr. Justice B. P. Jeevan Reddy 2000-2001& Mr.
Justice M. Jagannadha Rao 2002-2003 in 2001
77 th
Law Commission of India, The Code of Criminal Procedure, 1973(Act No. 2 of 1974), 154 Report, Fourteenth
Law Commission under the Chairmanship of Mr. Justice K.J.Reddy 1995-1997, in 1996
The Malimath Committee appointed by the Government of India in 2001 to
suggest reforms to the criminal justice system in its report submitted in March,
2003, supported the views of the law commissions.78
Stringent Implementation of Section 311 of the Cr.P.C.
The first part of Section 311 of Cr.P.C. gives the Court the discretionary power
to:
1. Summon any one as a witness;
2. Examine any person present in the Court.
3. Recall and re-examine any witness.
The second part of the section makes it mandatory on the court to take any of the
above steps if the new evidence appears to be essential to the just decision of the
case. The paramount consideration of this section is doing justice to the case and
not filling up the gaps in the prosecution of defence evidence. In fact, both the
prosecution and the defence may cross-examine a witness called under Section
311, and the court may decide which party will ask questions first, and to what
extent. But these tools for ascertaining the truth is rarely used by the proactive trial
Magistrate or a Session Judge. Hence, the reality is that Section 311 remains a
dead letter.

Contradiction of the witness as envisaged in section 145 of

Evidence Act
In order to mitigate the harm done to the case of the prosecution, on
account of a hostile witness, a request may be made to the court as laid down by
the proviso to sub- section (1) of Section 162, Cr. P. C. to permit the prosecution
to contradict the witness with his police statement, in the manner provided by
Section 145, Evidence Act. It is desirable that the prosecution makes a proper
request, and a proper note of it is made by the court rather than making a loose
note about declaring the witness hostile.
Speedy Trials / No Frequent Adjournments

78 Bhat, K. N., The Murder of Jessica Lall: Too many questions, but no answers, The Tribune, Dated 25 February
2006
Section 309 of the Cr.P.C. was enacted with the objective of ensuring speedy and
expeditious disposal cases and thus to prevent harassment of witnesses.79
However, the spirit of this beneficial provision has been totally missed by the
judiciary and courts grant frequent adjournments. Prolonged trial and
harassment is one of the main reasons for witnesses falling in side of the defence
and retracting their statements. Trial should proceed with as little delay as possible
so that there is less chance of the witness being approached and of
him/her forgetting the facts. The Public Prosecutor must anticipate that the
witness will turn hostile and have with him enough material and have prepared
questions to effectively cross-examine such a witness. In Swaran Singhs case,80
the Supreme Court observed:
Each trial should be properly monitored. Time has come that all the
Courts, District Courts subordinate courts are linked to the high Court with a
computer and a proper check is made on the adjournments and recording of
evidence. The Bar Council of India and State Bar Councils must play their part
and lend their support to put the criminal system back on its trial.
Evidence Recorded U/Section 164(5), Cr.P.C should be given
Substantive Value
The provisions in Section 164(5), Cr.P.C. although provide for recording the
statements of any person including the witnesses by a Magistrate, the statement so
recorded does not have a substantive value.81 In order to overcome the problem of
witness becoming hostile, it should be made mandatory that statement of all
material witnesses should be made to be recorded by a Judicial Magistrate
immediately during the course of investigation and the statements so recorded
have to be given substantive value.
Even if the witnesses turn hostile and retract from their statements made on oath
before a Judicial Magistrate the said statements on oath should be permitted to
be used as substantive evidence against the accused. However the probative

79 Section 309 (2) Second Proviso of the Cr.P.C states: Provided further that when witnesses are in
attendance, no adjournment or postponement shall be granted, without examining them. Except for special reasons to be
recorded
80 2000 Cr. L. J. 2780 (S.C.)
81 Ram Kishan V. Harmit Kaur A.I.R. 1972 S.C. 468
value of the statements should be left to the discretion of the court for evaluation
in the light of cross-examination and other materials adduced.
Reforming the process of investigation
The 14th Law Commission Report82 suggested that the investigation staff should
be separated from the law and order police. This will pave the way for a stricter
monitoring and control by the Examining Magistrate, and speedy investigations,
since the investigating police may be relieved of their law and their duties.
Furthermore, police officers need to be specially trained for the job of criminal
investigation. Prosecuting officers should be of help to the prosecutor, during the
trial, cases involving grave offences should be put to trial without any unnecessary
postponements, and in no case, before completion of six months from the date of
commission of the offence.
Enactment of a Comprehensive Witness Protection Legislation
Any further delay in the enactment of witness protection legislation shall cause
more miscarriages of justice in criminal trials. Article 142(2) of the Constitution of
India empowers, the Supreme Court shall as respects the territory of India, have
all and every power to make any order for the purpose of securing the attendance
of any person, the discovery or production of any documents or the investigation
or punishment of any contempt of itself.
In National Human Rights Commission V. State of Gujarat,83 the Supreme
Court observed:
no law has yet been enacted, not even a scheme has been framed by
the Union of India or by the State government for giving protection to the
witness.
It is high time that India should introduce a witness protection programme. The
Law Commission of India Consultation Paper on Witness Identity Protection and
Witness Protection Programme laid down that there are two broad aspects to the
need for witness protection. Firstly, to ensure that the evidence of witnesses
collected during investigation is not allowed to be destroyed by witnesses
retracting from their statements, during trial, and secondly, the physical and

82 Supra note 74
83 2003 (9) SCALE 329
mental susceptibility of the witness and taking care of his or her welfare, i.e. the
physical protection of the witness. The legislation should also necessarily include
provisions for treating the witness with dignity and fairness. The protection
programs cannot afford to cease after the completion of the trial, but should
continue thereafter too.
EVIDENTARY VALUE OF STATEMENT GIVEN BY A
HOSTILE WITNESS
The law is now well settled that merely because the witness is declared as hostile
witness, whole of his evidence is not liable to be thrown away.84 Reference in this
context may be made to the decision of the Supreme Court in State of U.P. V.
Ramesh Prasad Mishra and anr.85 Wherein Supreme Court stated that:
it is equally settled law that the evidence of a hostile witness would not
be totally rejected if spoken in favour of the prosecution or the accused, but it
can subjected to close scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or defence may be accepted.
Considering the question relating to evidence of hostile witness, the Supreme
Court in Satpal v. Delhi Administration86 observed:
even in a criminal prosecution when a witness is cross- examined and
contradicted with the leave of the court, by the party calling him, his evidence
cannot, as a matter of law, be treated as washed off the record altogether. It is
for the judge of fact to consider in each case whether as a result of such cross-
examination and contradiction, the witness stands thoroughly discredited or can
still be believed in regard to a part of his testimony. If the judge finds that in the
process, the credit of the witness has not been completely shaken, he may, after
reading and considering the evidence of the witness, as a whole, with due
caution and care, accept in the light of the other evidence on the record, that
part of the testimony which he finds to be creditworthy and act upon it. If in a
given case, the whole of the testimony of the witness is impugned and in the
process, the witness stands squarely and totally discredited the judge should, as a
matter of prudence discard his evidence in toto.87
84 Syed Akbar V. State of Karnataka 1980 (1) S.C.C. 30, Rabindra Kumar Dey V. State Of 1976(4)S.C.C. 233 and
Bhagwan Singh V. State of 1976 (1) S.C.C. 389
85 (1996) 10 S.C.C. 360
86 A.I.R. 1976 S.C. 294
87 Pandappa Hanumappa Hanaman V. State of Karnataka, A.I.R. 1997 S.C. 3663 at 3667; Syed Akbar V. State of
Karnataka A.I.R. 1979 S.C. 1848; K. Anbazhagan V. Superintendent of Police A.I.R. 2004 S.C. 524
Witness even if declared hostile that by itself cannot wash out his evidence.88
That the fact that the witness was declared hostile did not
completely efface his evidence, it remained admissible in the trial. Since his
testimony was corroborated by other evidence, there was no legal bar to base his
conviction upon it.89
Referring to its earlier decision90 the Apex Court in Balu Sonba
Shinde v. State of Maharashtra91 held that while it is true
that declaration of a witness to be hostile does not ipso facto
reject the evidence and it is now well settled that the portion of
evidence being advantageous to the parties may be taken
advantage of but the court before whom such a reliance is
placed shall have to be extremely cautious and circumspect in
such acceptance. The Supreme Court has manifestly made it
clear that evidence of a witness cannot be discarded merely
because he is declared hostile.92 Part of a hostile witnesss
evidence, which is cogent and credible, can be acted upon;93
such evidence does not get wiped out in toto,94 or gets
automatically rejected.95 However, the fact that a witness has
resiled from the earlier statement made in the course of
investigation puts the court on guard and cautions the court
against acceptance of such evidence without satisfactory
corroboration.96 And such a testimony should be scrutinized closely and
accepted to the extent consistent with the case of the prosecution or defence97. In

88 Mallappa Siddappa Alakanur & Ors. V. State of Karnataka 2009 (3) Criminal Court Cases 376 (S.C)
89 Bhagwan Singh V. State of Haryana 1976 (1) S.C.C. 389
90 State of U.P. V. Ramesh Prasad Misra (1996) 10 S.C.C. 360
91 (2002) 7 S.C.C. 543
92 Ram Swaroop V. State of Rajasthan A.I.R. 2004 S.C. 2943
93 Gubbala Venugopalaswamy V. State of A.P. (2004) 10 S.C.C. 120, Aman Kumar V. State of Haryana
(2004) 4 S.C.C. 379
94 Leela Srinivasa Rao V. State of A.P. A.I.R 2004 S.C. 1720
95 R. Prakash V. State of Karnataka A.I.R. 2004 S.C. 1812
96 Ram Swaroop V. State of Rajasthan A.I.R. 2004 S.C. 2943.

97 State of Rajasthan v. Teg Bahadur, 2005 S.C.C. (Cri) 218

Krishan and others V. State of Haryana98 case Division Bench of Punjab and
Haryana High Court held:
when a witness resiles from his previous statement made in the court,
the only requirement of law is that the witness is to be confronted with his
previous statement made before the court as provided in Section 145 of the
Indian Evidence Act,1872.
In this case the show cause notice was also issued to the witness to explain to
why a complaint be not lodged against him for committing the offence of perjury.
In Amrik Singh V. State of Haryana,99 Punjab and Haryana High court held:
It is trite law that evidence of a hostile witness also can be relied
upon to the extent to which it supports the prosecution version. Evidence of such
a witness cannot be treated as washed off the record. It remains admissible.
On a combined reading of the aforesaid decisions of the Supreme Court, it
emerges clearly that even in criminal proceedings when a witness is cross
examined and contradicted with the leave of the court, by the party calling him, his
evidence cannot, as a matter of law be treated as washed off the record altogether.
It is for the judge to consider in each case whether as a result of cross examination
and contradiction, the witness stands thoroughly discredited or can still be
believed in regard to a part of his testimony. If the judge finds that in the process,
credit of the witness has not been completely shaken, he may, after reading and
considering the evidence of the witness, as a whole, with due regard, that part of
his testimony which he finds to be creditworthy and act upon it.

98 2005 (2 )RCR (Criminal)109

99 2009 (3) RCR (Criminal) 308 (P&H)(DB)
ADVANCES IN LAW RELATING TO WITNESS PROTECTION

The legislature has taken a significant step to prevent the evil of witnesses turning
hostile, by enacting Criminal Law (Amendment) Act, 2005. There has been
inserted section 195-A in the Indian Penal Code. It provides:
whoever threatens another with any injury to his person, reputation or
property or to the person or reputation of any one in whom that person is
interested, with intent to cause that person to give false evidence shall be
punished with imprisonment of either description for a term which may
extended to seven years, or with fine, or with both; and if innocent person is
convicted and sentenced in consequence of such false evidence with death or
imprisonment for more than seven years , the person who threatens shall be
punished with the same punishment and sentence in the same manner and to the
same extent such innocent person is punished and sentenced.
The new provision provides for deterrent punishment for threatening any person to
give false evidence. Similarly, in the Indian Evidence Act, 1872, by the same
Amendment Act, Sub-section (2) has been inserted in section 154 which states:
Nothing in this section shall disentitle the person so permitted under
sub-section (1) to rely on any part of the evidence of such witness.
The time has come that the malaise of hostile witnesses is to be taken
seriously and redressed immediately. The only solution to the problem of hostile
witness is to bring the proposed changes in the existing laws (as discussed above)
and to enact a special legislation to protect the rights of witnesses so that they may
depose freely and without intimidation. Punitive and deterrent actions are required
to weed out the menace of hostility of the witnesses which has become common
these days as there is no fear of punishment. Appropriate measures must be taken
for the protection of witnesses who appear before the courts to testify so as to
render a helping hand in dispensation of justice. Dearth of funds should never be
an excuse, if our society fails to be alive to the reality, the plight of an honest
witness will be catastrophic and calamitous. The Indian Parliament should take a
note of the current scenario and implement a Witness Protection Program in the
country. Protection to the witness in all aspects, especially in sensitive cases
would, to a great extent, be effective in preventing them from turning hostile.
Legislative measures in this regard have become the inevitable need of the hour to
maintain and improve the effectiveness of the criminal justice delivery system.